[건축관계자변경신고수리처분취소][공2010상,1152]
Whether a written decision on permission for sale on the auction procedure for land and buildings constructed on such land and the relevant sales price payment documents, etc. fall under “documents evidencing alteration of rights” as stipulated in Article 11(1)1 of the former Enforcement Rule of the Building Act concerning reporting on alteration of persons related to construction (affirmative)
Comprehensively taking account of the circumstances such as the language, content and form of the provisions of Article 10(1) of the former Building Act and Article 12(1)3 of the former Enforcement Decree of the Building Act (wholly amended by Presidential Decree No. 21098, Oct. 29, 2008) and Article 12(1)3 of the former Enforcement Decree of the Building Act (wholly amended by Presidential Decree No. 21098, Oct. 29, 2008); and thus, administrative agencies have the character of material resources, such as whose owner is a person, etc. when granting permission, a building permit can be freely transferred with the alteration of rights to a building. Accordingly, the effect of the building permit is transferred along with the alteration of rights to the building and is not transferred by a separate approval. In the auction procedure under the Civil Execution Act, the buyer shall be deemed to constitute a document proving the alteration of the former Enforcement Rule of the Building Act (amended by Presidential Decree No. 1351, Jan. 13, 2007).
Article 10(1) of the former Building Act (wholly amended by Act No. 8974 of Mar. 21, 2008) (see current Article 16(1)), Article 12(1)3 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 21098 of Oct. 29, 2008), Article 11(1)1 of the former Enforcement Rule of the Building Act (amended by Ordinance No. 594 of Dec. 13, 2007)
[Judgment of the court below]
Asan Market (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)
South Mine Construction Co., Ltd. (Law Firm Subdivision, Attorneys Lee Ho-hoon et al., Counsel for the plaintiff-appellant)
Daejeon High Court Decision 2009Nu2212 Decided December 24, 2009
The part of the judgment of the court below concerning the conjunctive claim is reversed, and that part of the case is remanded to Daejeon High Court.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed by the defendant supplementary appellate brief).
1. According to Article 10(1) of the former Building Act (wholly amended by Act No. 8974, Mar. 21, 2008) and Article 12(1)3 of the former Enforcement Decree of the Building Act (wholly amended by Presidential Decree No. 21098, Oct. 29, 2008), a person who acquires a building under construction or substantial repair from a person who has obtained permission or made a report on construction or substantial repair of a building must report the change to the head of a Si/Gun/Gu. Meanwhile, pursuant to Article 11(1)1 of the former Enforcement Rule of the Building Act (wholly amended by Presidential Decree No. 594, Dec. 13, 2007; hereinafter the same), a person who acquires the building under construction or substantial repair from a person who has obtained permission or made a report on construction or substantial repair shall submit a report on the change of building related to construction to the permitting authority along with the “written consent to change the name of the building owner or documents proving the change in rights.”
In full view of the language, content, form, and construction permit of each provision have the nature of large property, and thus, an administrative agency is required to conduct a formal examination of human elements such as who the owner is the owner of the building; a building permit can be freely transferred along with the alteration of the right to the building; accordingly, the effect of the building permit is transferred along with the alteration of the right to the building subject to permission; and the buyer is not transferred by a separate approval and disposition; and in an auction procedure under the Civil Execution Act, the buyer acquires the right to the building at the time of payment of the sale price, it is reasonable to view that the land and the building constructed on the land fall under the “documents proving the alteration of the right relationship” as stipulated in Article 11(1) of the former Enforcement Rule of the Building Act.
2. Nevertheless, the court below determined that the decision to permit sale of each of the instant land and the instant building constructed on the land and the copy of the register of the land issued after the full payment of the sale price was not "documents proving a change in the relationship of rights" as provided by Article 11 (1) of the former Enforcement Rule of the Building Act, on the ground as stated in its reasoning. Thus, the court below erred in the misapprehension of legal principles as to "documents proving a change in the relation of rights" as provided by Article 11 (1) of the former Enforcement Rule of the Building Act, and such illegality affected the judgment. The ground of appeal pointing this out is with merit.
3. Therefore, the part of the judgment of the court below regarding the conjunctive claim shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Min Il-young (Presiding Justice)